Texas Child Custody

Child Custody Rights in the Lone Star State

Fit To Be A Father

Fit to be a Father

The fairytale marriage comes to an abrupt end. The glass of the framed wedding picture has been broken. The living room furniture, once considered a place for family meetings and fellowship, has been divided; it will be termed �community property� in legalese and will be fought over in a family court between two parties. The husband and wife will spend hundreds, maybe even thousands of dollars arguing over �he said,� �she said,� �he did this,� �she said� � matters that will provide nothing more than an official public record for future reference by the two parties. When the immature behavior of the adults ceases, a judge will bring to the forefront the matter of child custody, more popularly known as the, who gets the kids issue.

If mother and father do not come to an agreement on the matter of custody, the judge will wield his powerful tongue and utter some combination of the words, �it is in the best interests of the child�� and will be the first to reprioritize the importance of the parental roles in the life of the child. �The best interests the child� is a phrase that has been thrown around in family court for decades, but in reality, as it pertains to determining matters of custody nothing could be further from the truth; the courts today overwhelmingly still favor mothers, and fathers wage war in unfair custody battles every day, often times coming up empty handed.

Certainly over the last century, many a father has sown into the breakdown of the relationships between the father and his children. However, over time our society and the U.S. court system have tipped the scales of custodial matters, favoring the mother and leaving the fathers in the cold, with the children�s security blanket in hand. The American family has not always been structured the way it is today. In fact, it was not until the mid 1800s and the rise of the Industrial Revolution that the role of the father in the home changed significantly. In her book, Fatherhood Politics In The United States, Anna Gavanas mentions that in the seventeenth and eighteenth centuries, fathers had important childrearing tasks: they were the primary custodians of the children, and they were mainly responsible for their instruction and moral guidance (7). It was very common for the children to be at the father�s side throughout the day as he carried on the tasks of farming the land, working a trade, such as a blacksmith � often taught to the children, maintaining the home, etc. But, with the rise of the Industrial Revolution, many fathers were moved out of the home and into factory jobs. Industrial society demanded that middle-class fathering revolve around workplace schedules instead of preindustrial, home-based economic conditions, where fatherhood was part of everyday work (7).

In time, this evolution would prompt the courts to reverse their course on custody matters. The irony of this chain of events is startling; the working father replaces the at-home father in order to build America. Unbeknownst to the father, while taking part in a societal transition that ultimately builds a nation�s workforce and economy, the family structure begins a slow deterioration, resulting in a demolition that ultimately brings the family unit crashing down.

Domesticity and family involvement became associated with femininity in the nineteenth-century market economy, and �masculinity� entailed defining fathers first and foremost as breadwinners (Gavanas 7). The mother assumed the role in the domestic capacity that the father had previously filled. As time would have it, the role of the father became increasingly less in the home and he became more known as the ultimate decision-maker, who had the final say. Most people who grew up in the baby boomer generation can remember mother�s weapon of last resort: �you just wait until your father gets home!� But to the child, fathers were seen as a source of entertainment when they returned home from a long day�s work; playing with the kids was common past time, but the father�s input of moral guidance lessened.

There is a misconception that the fathers role can be filled by the stay-at-home mother. Fathers play a pivotal role in the lives of children. Children receive much of their validation from the voice of a caring father. The continual input of a father�s advice and counsel, the image of the father as the backbone of strength and stamina that he symbolizes, and the affections and verbal affirmations from the father water the seeds of self-esteem, and weave the thread of moral fiber into the identity of the child. This is not only necessary, but also vital to the growth and maturity of a child, especially during the tender years.

In a 2004 Law & Society Review article, Julie E. Artis summarizes one of the foundational legal philosophies used in custody disputes: the tender years doctrine. Until the late 1960s, courts automatically awarded mothers custody based on the �tender years doctrine� � the notion that mothers have superior, �natural� nurturing abilities and a biological connection the their infants. Despite current gender-neutral custody laws, the idea that mothers are biologically connected to young children and infants (by breastfeeding, for example) may remain among some portion of the judiciary (770).

On the record, most lawyers and judges will say that the tender years doctrine is no longer being used in today�s custody disputes. Instead, they insist that the gender-neutral �best interests of the child� standard, which replaced the tender years doctrine back in the 1970s, is the prevailing philosophy and spoken rule for determining matters of custody. In fact, Oklahoma Law, under Title 43, Statute 109a, states: �In awarding the custody of a minor child or in appointing a general guardian for said child, the court shall consider what appears to be in the best interests of the physical and mental and moral welfare of the child.� It sounds fair, does it not? This law puts the child and the child�s best �interests� first. Therefore, the court system ensures that the child will always be in the better of the two homes. It ensures that the environment - part of the �best interests,� the �physical and mental and moral welfare,� and the best setting for the child to have the most opportunities for a great future are taken to the highest consideration by the court. Of course, the U.S. court system is fair and just � at least allegedly.

In his article, �Dads Want Their Dad,� William C. Smith, a lawyer and legal journalist in Narberth, Pennsylvania, talks about the ongoing struggle of fathers who have to fight the court in what they perceive as an �anti-father bias in custody rulings.� The fact remains that, though the legal jargon appears to convey fairness in principle, the reality is that there is still a gender bias in custody matters. Fathers have an uphill battle when it comes to winning the court�s attention long enough just to make an intelligent argument. The U.S. court system is fair and just.

In response to one court case, Artis details the account of a judge who suggested that only a �high negative� could influence him to rule for the father in the case (786). This judge indicated the he has a preference for the mother, �assuming she�s not nuts.� Another judge stated that, �In this situation, I can�t think of anything except a very high negative that would keep the child from being with the mother� Once again, the behind closed doors talk that ensues between judges, or in this case between judges and lawyers, reveals the truth behind what drives many of today�s court decisions regarding child custody. With this type of philosophy and psychology rooted in the minds of our judges, fathers don�t stand a chance.

But is not the result of this way of thinking the very reason fathers struggle with winning custody to begin with? Is it not a cycle that perpetuates itself? Today�s results are yesterday�s decisions to remove the father from the lives of their children. Fathers could not be involved with their children post-divorce, or a wedge was placed between the relationship of father and child. Visitation schedules did not work because many fathers had to work in order to pay legal fees, alimony, and child support, in addition to their own monthly obligations. More financial obligation requires more work, overtime, and sometimes more than one job, and time becomes a useless commodity not gracing the desire of the father to spend the much-needed time with his children.

Time not spent with the child is immediately dubbed �irresponsible� on the part of the father by the court, and it becomes one more weapon of warfare for the mother, who convinces the court that the father �would never be home enough for the children.� And it works. On one hand, the court system wants the father to establish a foundational security in order to meet the monetary and basic welfare needs of the child, but on the other it expects the father to be equally as domestic in nature as a stay-at-home-mother. Gavanas makes an interesting point, referencing a comment made by former Vice President Al Gore: The fatherhood responsibility movement is a reaction to the grievance that �the family� has become synonymous with mother and child and thus �feminized� (99). Gender bias is not only seen as a problem by your average, struggling, and responsible father seeking to gain custody, but also by fathers functioning in powerful leadership capacities, who have seen the deteriorating role of the father.

Nick Cohen, in his recent article, �Daddy Will Stop at Nothing to See You,� points out that �an extreme feminist bias pervades the system� (32). �Best interests� would allow for a child to spend an equal amount of time with both parents in the even a divorce occurred. Cohen adds that �break-ups are a crippling shock, both for the parent who is forced out of the child�s life and for the child itself.� The best interests of the child should inherently include the input of the two parents who brought the child in to the world � not just one. Still, the fact remains that it is not that way.

Most mothers raising children in single-parent homes, especially where the father has been estranged from the home, believe that they can fill both the role of the mother and father for the child. Jeffrey M. Leving, a fathers� rights advocate in Chicago, cites jaw-dropping statistics on the results of fatherless children: ��who reportedly make up 72% of teenage murders and 60% of rapists, and are 11 times more likely to exhibit violent behavior than children from two-parent homes� (gtd. In Smith). Certainly, a father�s guidance and leadership example to the child is in the best interest of the child. The continual and consistent attention of the father in the life of his son naturally prevents him from seeking out acceptance from neighborhood gangs; certainly the regular love and affection from a father to his daughter keeps her from having to seek out acceptance and validation from many boyfriends.

It would make more sense that in the best interests of the child the court would rule in favor of �joint custody� as a standard, unless proven that either parent were not fit to act responsibly in their parental role. Most states have �joint custody� law, but any lawyer specializing in family law would tell one that joint custody is only effective if both parents get along and can remain civil. Even with joint custody, �the court is still more likely to treat the mother like the primary parent,� as James L. Wilks asserts in his article �Fathers Have Rights, Too.� �Too often men walk into the courtroom expecting equality and justice and walk out feeling they�ve been stripped of their fatherhood,� he states.

�Fathers� rights claim family courts too often discourage divorced or unwed fathers from playing a positive role in their children�s lives, thus contributing to a nationwide �crisis of fatherlessness� (Smith). The problem is bigger than most people dare admit. Our nation is continually feeding into a cycle of dysfunctional families by keeping the father out of the family unit, post-divorce. The best interests of the child cannot be upheld with integrity until the court deals with both, the mother and father fairly.

Still today, feminist groups and courtroom judges have a sense that a father�s primary role is to support the child from a monetary standpoint and provide the basic necessities of life � the very philosophy of the late 1800s that has brought us to where we are today. In Debra Moss�s article, �Gender Bias,� she reveals the court�s finding on a custody case where a father�s visitation with his son was restricted because he was not the �breadwinner.� When a mother is given sole custody or residential custody of a child and continues to work, she is contributing to what this court determined would be �socially crippling� to the child in his adult life. Yet, this is the case in most single-parent homes, where the mother is the custodial parent. Why is this argument not upheld equally for the mother and the father? If the mother can go out and work and be a custodial parent, does the best interests of the child theory really hold up in all fairness?

�The best interests of the child� theory is weak and has become one of the grossest lies that has ever been sold in the American judicial system as a basis for determining custody matters. The best interests of the child should include both parents equally; the best interests of the child includes the involvement of a mother and a father. The best interests of the child means: children do not have to be ripped away from one parent or the other because of unfair and gender-biased character assessments made inside of a courtroom. The best interests of the child should enforce and encourage the rights of both parents to have an equal interest in the child. The best interests of the child is not about the underlying interests and ulterior motives of the parent; it is not about an opportunity for one parent to avenge their broken heart by using the child as a trophy to be won by them and lost by the other parent. The best interests of the child is about�the child�s best interest.

Phillip Anthony is a free-lance writer, published widely on the internet on many sites for authors and independent writers. His work has been published in newspapers throughout Oklahoma and the southwest.